Robert Luskin’s Source: Viveca Novak

When news surfaced this week that Time Magazine reporter Viveca Novak was to be questioned by the Special Counsel in the CIA leak case, furious speculation arose as to what could be of interest to Patrick Fitzgerald about the conversations she had Karl Rove’s attorney, Robert Luskin, after May, 2004 — the subject specified in the subpoena. What might her good friend, the notorious loose-lipped Luskin, have said to her?

It turns out she didn’t hear anything. But she evidently told him quite a bit.

When Matt Cooper was initially subpoenaed in May of 2004 about articles he had written about the CIA leak case, few people knew that Karl Rove was Cooper’s original source. But Viveca Novak was one of those people. And sources are now saying that Luskin’s attempts to rescue his client from a perjury indictment now center around a conversation he had with Ms. Novak where she told him that his client was Cooper’s source.

The initial subpoena that Time Magazine received in May, 2004 covered two specific articles to which Cooper had contributed, one from June 17, 2003 and the other July 21, 2003. After Time magazine lost a motion to quash, Cooper made a deal with Fitzgerald that allowed him to speak specifically about the person who was of interest to the grand jury — Scooter Libby.

Cooper was deposed in August of 2004, and it was during this time that Fitzgerald learned that Libby was not the first administration official to tell him that Joe Wilson’s wife worked for the CIA. So on September 13, 2004, Time and Cooper got a much broader subpoena that threatened to snare Karl Rove in its net. The two refused to comply with the subpoenas, and on October 13, they were held in contempt.

Two days later, on October 15, Karl Rove appeared again before the grand jury and attempted to change his original story. In his earlier statements to the FBI and his first appearance before the grand jury in February 2004, he hadn’t mentioned a conversation with Cooper. But now that it looked like Matt Cooper might have no choice but to give him up, Rove went back before the grand jury and claimed that an email he recently found that he had written to Stephen Hadley at the time of the Cooper conversation in 2003 has "jogged his memory" and he now recalled the exchange. The fact that the email had not been produced as a result of the prosecutor’s initial subpoenas was chalked up to an error in previous search parameters.

Luskin seems to have offered up the conversation with his friend, Ms. Novak, in an attempt to sketch a plausible scenario that will allow his client to escape perjury charges. Rove is allowed to "recant" his previous testimony before the grand jury:

Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

Luskin must be trying to sketch a plausible scenario whereby his client recanted his earlier testimony because of a "recovered memory." He is evidently claiming that his conversation with Viveca Novak is what triggered him to go back and make another document search of White House emails of the period, and the discovery of the Hadley email is what in turn triggered Karl’s amazing memory recovery. If he can get the Special Counsel to buy his story that those events occurred before it was certain that Cooper would have to testify, his client might hope to skate by on a recantation defense. (It would not, however, get him off the hook for making false statements to the FBI.)

If this is all Luskin has, no wonder he’s keeping the details of this particular story from the press. He’s dealing from an awfully weak hand.

And we have to wonder — did Ms. Novak share the details of this conversation with her bosses at Time Magazine, or was this a surprise to them as well? Considering the crisis of conscience the event has generated at Time and the fact that Matt Cooper quite nearly went to jail, it should be quite interesting to hear Ms. Novak’s own story that she promises to write following her testimony before Patrick Fitzgerald.

Jane Hamsher

Jane is the founder of Firedoglake.com. Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.Subscribe in a reader